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Politicking

Several judicial ethics advisory committees have recently answered inquiries from judges about whether they can participate in marches, contact their elected representatives, or engage in similar activities.

The New York committee advised that a judge may not participate in the March for Science (scheduled for Earth Day, April 22, 2017) if the march is co-sponsored by or affiliated with a political organization, if the march is in support of or in opposition to a political party or candidate, or if marching will insert the judge unnecessarily into public controversy or involve him in impermissible political activity. New York Advisory Opinion 2017-38. The committee noted that the New York code of judicial conduct has a blanket prohibition on any direct or indirect political activity by judges with exceptions for voting and identifying as a member of a political party, for measures to improve the law, the legal system or the administration of justice, for the judge’s own campaign for office, and when the judges’ clear and direct personal interest is at stake. The committee emphasized that the exceptions are narrow “to preserve the preeminent principle that the breadth of the prohibition against political activity must remain robust.”

The committee noted that “there are conflicting reports about the full agenda of the March” because it had “only recently been proposed and organized.” Thus, the committee cautioned, although the march “purports to be a non-partisan gathering advocating for a recognition of the importance of scientific endeavors and rational thought in society,” it could become “more of a platform for political protest against the perceived preference” of some individuals and groups for “’junk’ science, disconnected from critical thinking and fact-based solutions” and could “be seen as related primarily to highly controversial environmental issues such as global warming and resource depletion, matters that do not clearly and directly implicate the law, the legal system or the administration of justice . . . .” Therefore, the committee directed the judge to carefully “monitor the agenda and positions taken by organizers”’ and not to join if marching means associating with “matters that are the subject of litigation or public controversy” or being involved with “political organizations,” that is, any “group whose principal purpose is to further the election or appointment of candidates to political office . . . .” The committee also stated it “trusts that a judge will exercise discretion and leave the area on the day of the March if the judge finds that political signs unexpectedly dominate the occasion.”

In addition, the committee advised that a judge may not participate, even without speaking, in a local rally, march, or demonstration sponsored by a grassroots organization unless one of the exceptions applied. Specifically, the committee disapproved of a judge participating in a rally “in opposition to the so-called Trump Muslim Ban,” stating the event clearly “involves great public controversy, which is also the subject of litigation.”

About a month after the November election, the Massachusetts committee advised a judge that she could not participate in the Women’s March on Washington scheduled for the day after the presidential inauguration. Massachusetts Advisory Opinion 2016-10. Although the organizers emphasized that the march was “intended to be inclusive and welcoming to everyone who supports women’s rights,” the committee stated that “the political overtones are unmistakable,” pointing to references to “the ‘rhetoric of the past election cycle’ that has “insulted, demonized, and threatened . . . immigrants of all statuses, Muslims and those of diverse religious faiths, people who identify as LGBTQIA, Native people, Black and Brown people, people with disabilities, [and] survivors of sexual assault.’” The committee concluded:

We understand that you wish to participate in the Women’s March to stand up against misogyny, racism, and other biases and bigotries that threaten the rule of law. The public and the media are, however, likely to focus on the timing of the event and the organizers’ announced desire to “send a message” to the new President on his first day in office. We believe that a reasonable person would perceive the Women’s March as a political protest, and the Code therefore prohibits your participation.

Cf., In the Matter of Sanders, 955 P.2d 369 (Washington 1998) (a new supreme court justice’s brief appearance at a March for Life rally to express his belief in the preservation and protection of innocent human life and to thank his supporters for his election did not lead to a clear conclusion that he was not impartial on the issues that might be presented to him as a judge).

Contacts

The New York committee advised that a judge may not call a Senate committee to express an opinion on a pending federal executive branch appointment or sign a MoveOn.org petition concerning such an appointment, whether as a private citizen or otherwise. New York Advisory Opinion 2017-38. Similarly, the Colorado committee stated that a judge may not contact his federal congressional representatives to express approval of or dissatisfaction with federal legislation or cabinet appointments.Colorado Advisory Opinion 2017-1. The committee did identify an exception for matters concerning the law, the legal system, or the administration of justice or matters the judge acquired knowledge or expertise about in the course of judicial duties, pursuant to Rule 3.2. However, the committee cautioned the judge to be mindful even in those “narrowest” of circumstances to avoid impropriety and maintain independence, integrity, and impartiality.

The committee explained:

An endorsement or a protest of a particular legislative policy would appear to implicate the judge’s personal opinion. Consequently, if a judge contacts a federal representative to discuss matters outside of the narrow scope permitted by Rule 3.2, such contact would very likely amount to an impropriety or give the appearance of impropriety. . . . That rule requires judges to act in a manner that promotes public confidence and to avoid the appearance of impropriety both professionally and with respect to personal conduct.

In addition, the committee concluded, contact by a judge about a cabinet appointment would constitute an improper endorsement. The opinion recognized that “[c]abinet nominees and appointees do not hold a public office per se” but noted that “they are chosen based upon their executive experience, policy expertise, partisan credentials and loyalty to the President,” “[t]heir confirmation is often contentious and politically charged,” and “[o]nce in office, they are seen as advocates for political policy.” Thus, the committee stated, expressing support or opposition creates the appearance of political partisanship and, even if “a private telephone call may not constitute a public statement, a judge should refrain from expressing views because it would be contrary to a judge’s independence and impartiality.”

The opinion also suggested that, “[e]ven if a judge withholds his or her judicial title and is identified in name only, the judge’s status may eventually be revealed.” Finally, the committee added that the contact would be impermissible even if it were anonymous, stating that engaging in the behavior anonymously “does not cure the concerns of impartiality or questionable integrity.”

Similarly, the New York committee stated that a judge may not engage anonymously in otherwise prohibited political activity, such as publishing partisan political literature. New York Advisory Opinion 2016-85. It explained:

Concealing one’s name and judicial status does not ordinarily render prohibited conduct permissible . . . . Even assuming the judge could operate in perfect secrecy, anonymously printing and mailing partisan political literature would violate the rule against “directly or indirectly” engaging in partisan political activity, which contains no exception for anonymous conduct . . . .

And if, as is quite likely in modern politics, the public learned that a judge was attempting to conceal his/her impermissible political activity, that would only exacerbate the resulting appearance of impropriety.

Outreach

In response to an inquiry, the Massachusetts committee advised that “judges may reach out to individuals, and associations of individuals, who may feel vulnerable due to their race, religion, national origin, citizenship status, or other attribute(s), and remind them that the Massachusetts courts are and will remain committed to upholding the right of every person to obtain equal justice before an independent and impartial judge.” Massachusetts Advisory Opinion 2017-1. The opinion also stated that, “in prepared or extemporaneous remarks,” judges may respond to comments by public officials or others that appear to reflect misconceptions about the role of an independent judiciary or manifest disrespect for the rule of law. The committee explained:

It is proper for a judge to dispel misconceptions about the role of an independent judiciary and to emphasize the importance of respect for the rule of law, so long as the judge’s remarks preserve the dignity of judicial office, would not lead a reasonable person to question the judge’s ability to impartially administer the law, and avoid the implication the judge is influenced by, or appears to be influenced by, partisan or political interests.

The committee noted that the code “places parameters around judges’ remarks, even on permitted subjects such as defending the rule of law or speaking about the administration of justice” and cautioned that, “[i]n deciding whether it is appropriate to accept any particular speaking engagement, judges must consider the overall context in which the remarks would be made.” The committee also emphasized that “[a]n underlying premise of the Code is that a judge’s fair and impartial decisions are the most important defense against threats to judicial independence and the rule of law.”